Citation Nr: 0313810
Decision Date: 06/24/03 Archive Date: 06/30/03
DOCKET NO. 00-12 210A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUES
1. Whether new and material evidence has been received to
reopen the veteran's claim of entitlement to service
connection for disability manifested by neck pain.
2. Whether new and material evidence has been received to
reopen the veteran's claim of entitlement to service
connection for disability manifested by shoulder pain.
(The issues of entitlement to service connection for neck
disability, for shoulder disability, and for headaches will
be the subject of a subsequent Board decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Joseph A. Rose, Associate Counsel
INTRODUCTION
The veteran had active duty service from March 1994 to May
1996.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a December 1999 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). The issues presented were remanded by the Board in
November 2002 in order for the veteran to be scheduled a
personal hearing before a hearing officer at the RO.
However, the record shows that the veteran canceled the
hearing, scheduled in January 2003, and he has not otherwise
expressed a desire to reschedule that hearing.
The November 2002 remand characterized all three issues on
appeal as entitlement to service connection. Upon further
review, the record shows that the veteran was denied
entitlement to service connection for disability manifested
neck pain and shoulder pain in a July 1996 rating decision.
As discussed below, the July 1996 rating decision became
final. 38 U.S.C.A. § 7105(c). In the current appeal, the RO
appeared to reopen the veteran's service-connection neck and
shoulder pain claims, however, the Board is not bound by that
determination and must nevertheless consider whether new and
material evidence has been received. Jackson, infra. The
Board therefore finds that in addition to the entitlement to
service connection for disability manifested by headaches,
the remaining issues on appeal at this time are whether new
and material evidence has been received to reopen a claim of
entitlement to service connection for disability manifested
by neck pain and shoulder pain.
The Board is undertaking additional development of the issues
of entitlement to service connection for neck disability, for
shoulder disability, and for headaches, pursuant to the
authority granted by 67 Fed. Reg. 3099, 3104 (Jan. 23, 2002)
(now codified at 38 C.F.R. § 19.9(a)(2)). When the
development has been completed, the Board will provide notice
of the development as required by Rule of Practice 903 (67
Fed. Reg. 3099, 3105 (Jan. 23, 2002) (now codified at
38 C.F.R. § 20.903).
FINDINGS OF FACT
1. By rating decision in July 1996, the RO denied
entitlement to service connection for disability manifested
by neck pain; the veteran did not file a notice of
disagreement.
2. Evidence received since the July 1996 rating decision is
so significant that it must be considered in order to fairly
decide the merits of the claim of entitlement to service
connection for neck disability, characterized as
sprain/strain of the cervical spine.
3. By rating decision in July 1996, the RO denied
entitlement to service connection for disability manifested
by shoulder pain; the veteran did not file a notice of
disagreement.
4. Evidence received since the July 1996 rating decision is
so significant that it must be considered in order to fairly
decide the merits of the claim of entitlement to service
connection for disability manifested by shoulder pain.
CONCLUSIONS OF LAW
1. The July 1996 rating decision which denied entitlement to
service connection for disability manifested by neck pain is
final. 38 U.S.C.A. § 7105(c) (West 2002).
2. New and material evidence has been received since the
July 1996 rating decision, and the claim of entitlement to
service connection for disability manifested by neck pain is
reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156
(2002).
3. The July 1996 rating decision which denied entitlement to
service connection for disability manifested by shoulder pain
is final. 38 U.S.C.A. § 7105(c) (West 2002).
4. New and material evidence has been received since the
July 1996 rating decision, and the claim of entitlement to
service connection for disability manifested by shoulder pain
is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R.
§ 3.156 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
Initially, the Board notes that on November 9, 2000, the
President signed into law the Veterans Claims Assistance Act
of 2000. Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A.
§§ 5102, 5103, 5103A, 5107 (West 2002). This newly enacted
legislation provides, among other things, for notice and
assistance to claimants under certain circumstances. VA has
issued final rules to amend adjudication regulations to
implement the provisions of VCAA. See 38 C.F.R §§ 3.102,
3.156(a), 3.159 and 3.326(a) (2002). The intended effect of
the new regulations is to establish clear guidelines
consistent with the intent of Congress regarding the timing
and the scope of assistance VA will provide to a claimant who
files a substantially complete application for VA benefits,
or who attempts to reopen a previously denied claim. Where
laws or regulations change after a claim has been filed or
reopened and before the administrative or judicial process
has been concluded, the version most favorable to the
appellant will apply unless Congress provided otherwise or
has permitted the Secretary of Veterans Affairs to do
otherwise and the Secretary has done so. See Karnas v.
Derwinski, 1 Vet. App. 308 (1991).
After reviewing the claims folder, the Board finds the
claimant has been notified of the applicable laws and
regulations which set forth the criteria for entitlement to
service connection and his application to reopen his claims
for service connection for disabilities manifested by neck
and shoulder pain. The discussions in the rating decision,
statement of the case, and supplemental statement of the case
have informed the claimant of the information and evidence
necessary to warrant entitlement to the benefits sought.
Moreover, in a March 2001 letter and a February 2003
supplemental statement of the case, the veteran was
effectively furnished notice of the types of evidence
necessary to substantiate his claims as well as the types of
evidence VA would assist him in obtaining. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002). The Board therefore finds
that the notice requirements of the new law and regulation
have been met.
Furthermore, that there has been substantial compliance with
the assistance provisions set forth in the new law and
regulation. The record in this case includes service medical
records, VA medical records, private medical statement from
Fred J. Shultz, M.D., and a medical record from Orange
Coastal College Student Health Service. No additional
pertinent evidence has been identified by the claimant as
relevant to the issues on appeal. Under these circumstances,
no further action is necessary to assist the claimant with
the claims.
The Board has reviewed the facts of this case in light of
VCAA and the new VCAA regulations. As discussed above, VA
has made all reasonable efforts to assist the claimant in the
development of the claims and has notified the claimant of
the information and evidence necessary to substantiate the
claims. Consequently, the case need not be referred to the
claimant or the claimant's representative for further
argument as the Board's consideration of the new law and new
regulations in the first instance does not prejudice the
claimant. See generally Sutton v. Brown, 9 Vet. App. 553
(1996); Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C.
Prec. Op. No. 16-92 (July 24, 1992).
Under the circumstances of this case, where there has been
substantial compliance with the new legislation and the new
implementing regulation, a remand would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
claimant are to be avoided).
Service Connection
The veteran's underlying contention is that he currently
suffers from disabilities manifested by neck and shoulder
pain, which are related to an inservice injury or are
proximately due to or the result of a service-connected
disability. Applicable law provides that service connection
will be granted if it is shown that the veteran suffers from
disability resulting from an injury suffered or disease
contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in active service. 38 U.S.C.A. § 1110. That an injury
occurred in service alone is not enough; there must be
chronic disability resulting from that injury. If there is
no showing of a resulting chronic condition during service,
then a showing of continuity of symptomatology after service
is required to support a finding of chronicity. 38 C.F.R.
§ 3.303(b). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
Additionally, a disability which is proximately due to or the
result of a service-connected disease or injury shall be
service connected. 38 C.F.R. § 3.310. The Board also notes
that secondary service connection on the basis of aggravation
is permitted under 38 C.F.R. § 3.310, and compensation is
payable for that degree of aggravation of a non-service-
connected disability caused by a service-connected
disability. Allen v. Brown, 7 Vet. App. 439 (1995).
As noted above, a July 1996 rating decision denied service
connection for disabilities manifested by neck and shoulder
pain. The veteran was notified of that determination and
informed of appellate rights and procedures that same month.
However, the veteran did not file a notice of disagreement to
initiate an appeal from the July 1996 rating decision. The
July 1996 rating decision therefore became final.
38 U.S.C.A. § 7105(c). However, claims which are the subject
of a prior final denials may be reopened and the prior
disposition reviewed if certain requirements are met.
New and Material
When a claim to reopen is presented under section 5108, VA
must first determine whether the evidence presented or
secured since the last final disallowance of the claim is new
and material. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a);
Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
New and material evidence is evidence not previously
submitted which bears directly and substantially upon the
specific matter under consideration, which is neither
cumulative nor redundant, and which by itself or in
connection with the evidence previously assembled is so
significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156(a). In
Hodge, the United States Court of Appeals for the Federal
Circuit noted that new evidence could be sufficient to reopen
a claim if it could contribute to a more complete picture of
the circumstances surrounding the origin of a veteran's
injury or disability, even where it would not be enough to
convince the Board to grant a claim. Id. at 1363.
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992). In Kutscherousky v.
West, 12 Vet. App. 369 (1999) the United States Court of
Appeals for Veterans Claims (Court) held that the prior
holding in Justus that the evidence is presumed to be
credible was not altered by the Federal Circuit decision in
Hodge.
The Board notes here that the provisions of 38 C.F.R. §
3.156(a) were amended effective August 29, 2001. These
amendments are effective only on claims received on or after
August 29, 2001, and are, thus, not relevant in the instant
case. See 66 Fed. Reg. 45620-45632 (August 29, 2001).
As noted above, it appears from a December 1999 rating
decision that the RO in fact found that the claims for
entitlement to service connection for disabilities manifested
by neck and shoulder pain had been reopened. The RO then
discussed the merits of the evidence and found that service
connection was not warranted for both claims. Although the
RO may have determine that new and material evidence was
received to reopen the claims, the Board is not bound by that
determination and must nevertheless consider whether new and
material evidence has been received. Jackson v. Principi,
265 F.3d 1366 (Fed. Cir. 2001).
Neck Disability
In the July 1996 rating decision, the veteran's claim was
denied on the basis that although a November 1995 service
record showed that the veteran was assessed as having a neck
strain, the neck strain required no further medical treatment
and had resolved. Further, the medical evidence following
service did not show that the veteran had a current, chronic
neck disability. However, evidence received since the July
1996 rating decision includes a VA treatment report in April
2001. The April 2001 VA examiner determined that the veteran
had a sprain/strain of the cervical spine. This evidence
clearly goes to the basis for the July 1996 denial. As such,
the evidence received since the July 1996 rating decision is
new and material, and the veteran's claim of entitlement to
service connection for neck disability characterized as
sprain/strain of the cervical spine, has been reopened.
Shoulder Pain
In the July 1996 rating decision, the veteran's claim was
denied on the basis that although there was pain in right
shoulder with all motion during separation examination in May
1996, there was no diagnosis of a shoulder disability in
service or following service to warrant service connection.
In connection with his current attempt to reopen his service
connection claim for disability manifested by shoulder pain,
VA medical records, private medical record from Orange
Coastal College Student Health Service, and a private medical
statement from Fred J. Shultz, M.D. has been received.
VA medical records and Dr. Shultz's medical statement refer
to the veteran's shoulder problems as shoulder pain. The
July 1996 rating decision appears to have denied the claim
due to the fact that there was no current shoulder
disability. Evidence received since July 1996 does not
appear to show any clear diagnosis of shoulder disability,
but the references to pain in the shoulder girdle muscles
together with reference to diffuse myofascial trigger points
(as noted in an April 2001 clinical record) do suggest that
there may be some shoulder disorder present. For purposes of
reopening the claim, the Board finds this evidence to be new
and material.
With regard to both issues, additional development is
necessary before a merits analysis may be undertaken.
ORDER
The veteran's claims of entitlement to service connection for
disability manifested by neck pain and for disability
manifested by shoulder pain have been reopened. To this
extent, the appeal is granted.
____________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.